Howe v. Berry

• Decision Date: 21 May 1897
• Citation: 168 Mass. 418,47 N.E. 104
• Parties: HOWE et al. v. BERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 418

47 N.E. 104

HOWE et al. v. BERRY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 21, 1897

COUNSEL

Berry & Upton, for appellant.

Asa P French, for appellees.

OPINION

HOLMES J.

This is a petition by the heirs of William J. Howe to have set off to them real estate to the value of $5,000 out of the land lately belonging to Abigail T. Howe, his wife. The respondent is trustee under her will. She died before her husband, and he, never having consented to the will, waived its provisions. The pair had no children. The respondent contends that, as they had had no issue born alive, William J. Howe was cut off by the will from everything but a life estate in one-half of his wife's lands. By Pub.St. c. 147, § 6, as amended by St.1885, c. 255, § 1, a married woman may make a will as if sole, except that, without her husband's written consent the will is not to deprive him of his curtesy or his statutory life estate, or, by the further amendment of St.1887, c. 290, § 2, "of her real estate not exceeding five thousand dollars in value, when no issue survives her." The argument is that the word "survives" imports that issue must have been born, although it does not live beyond its parent; and then this interpretation of the act of 1887 is applied to Pub.St. c. 124, § 1, by which the right to the $5,000 worth of land is created, in order to determine in what cases that right is given.

The trouble with the argument is that it begins at the wrong end. The saving clause of the later act of 1887 must be construed by the earlier act creating the right which is saved, not the earlier by the later. By Pub.St. c. 124, § 1, as amended by St.1887, c. 290, § 1, "If she dies and leaves no issue living, he shall take her real estate in fee to an amount not exceeding five thousand dollars in value, and shall also have an estate by the curtesy or other life interest, as before provided, in her other real estate." It will be observed that here the word is "living," not "surviving." Furthermore, the words "or other life interest" refer to an immediately preceding provision made for the husband if they have had no issue born alive. So that it is plain on the face of the section that it is not necessary to have had children in order to get the $5,000 worth in fee, since one who takes this "other life interest" may have it. Our construction is confirmed, if confirmation is needed, by the original statute (S...